Daniel Penny, the former U.S. Marine charged in the subway chokehold death of Jordan Neely, will stand trial on Oct. 8, a Manhattan judge ruled Wednesday.
Penny has pleaded not guilty to manslaughter and criminally negligent homicide. Bystander video of the incident aboard an uptown F train on May 1, 2023, showed Penny holding the 30-year-old Neely in a chokehold for several minutes as the victim slowly kicked his legs and then stopped moving. Medics later pronounced him dead at the hospital.
Five passengers called 911 during the incident. One said Neely was making threats and harassing people when he got on the train, and two incorrectly reported he had a “knife or a gun,” police sources previously told The News.
“While we still hold out hope that the Manhattan district attorney will see the injustice in continuing this prosecution, we are prepared to defend Mr. Penny at trial, and we are confident he will be fully exonerated,” Penny’s lawyer, Thomas Kenniff, told the Daily News after a brief Manhattan Supreme Court hearing.
“Under the circumstances, I think he’s doing as well as possible. Nobody wants to be the subject of a criminal prosecution. No one who’s innocent, in our eyes, ever should be … It is a life altering circumstance regardless of the outcome.”
A spokesperson for the prosecutor’s office declined to comment.
Penny, a Long Island resident who was unemployed and looking for work at the time of the incident, has said he took the unarmed Neely down after he boarded the train car acting erratically. The victim, who was homeless at the time of his death, was recognizable to many New York City commuters as a Michael Jackson tribute artist. His relatives say he battled severe mental illness, compounded by the grief of his mother’s murder when was just 14.
Ahead of the trial, which is expected to last around six weeks, Penny’s lawyers and the Manhattan district attorney are expected to return to court in September for a suppression hearing. Prosecutors will argue that Penny’s statements to cops in the immediate aftermath of the incident, which did not lead to his arrest, are legally admissible.
“He came on, threw all his s–t down, was very aggressive, going crazy. I was behind him, put him in a choke,” Penny is quoted telling officers inside the subway station in court records, adding that Neely was “threatening everybody.”
“We just went to the ground. He was trying to roll up, I had him pretty good. I was in the Marine Corps,” Penny also said. “People in the subway were afraid for their safety.”
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Andrew Savulich/New York Daily News Jordan Neely is pictured before going to see the Michael Jackson movie, “This is It,” outside the Regal Cinemas on 8th Ave. and 42nd St. in Times Square, New York, in 2009. (Andrew Savulich / New York Daily News)
Neely has not been accused of attacking anyone. The witness who filmed a viral video of the incident, independent journalist Alberto Vazquez, said he told passengers he was hungry and didn’t seem like he wanted to hurt people.
The entire incident played out between two stops, with Neely getting on the train at Second Ave. and unconscious in Penny’s grasp by the time it reached the next stop at Broadway-Lafayette.
The News reached out to a representative for Neely’s relatives for comment.
